Church v. Vanduzee

Thompson, J., •pronounced the opinion of the Court. — The plaintiff’s counsel contend, that the county • court erred in not dismissing the action on one or the other of the plaintiff’s motions for that purpose ; and thus contend for the following proposition : “ That, whenever, from the nature of the action, the damages, to be_recovered, are necessarily uncertain, the sum demanded must determine the jurisdiction, and the right of appeal.” In support of this, they rely upon a decision, made in this county, but not reported, in the case of Reynolds and wife vs. Robinson, decided in January, 1822. In that case, the plaintiff demanded twenty dollars, and recovered $1,67. It does not appear what account was exhibited before the justice. Before the county court, his account, upon oyer, was one calf skin $1,50. Interest 51 cents. And the writ of error leaves it uncertain whether the defendant exhibited any account before thejustice. The county court dismissed the action, and the defendant and appellant brought his writ of error; and the Supreme Court reversed the decision. It is unnecessary, that this Court should pronounce upon the correctness of that decision. If it were, we should probably have no difficulty in saying, that, when the plaintiff has made his cause ap-pealable, by demanding twenty dollars, he cannot afterwards, and especially after an appeal, drive the defendant out of court, by exhibiting a smaller account in oyer.' The plaintiff relies, also, upon the decision in the case of Brush vs. Hurlburt, made in this Court at the last term. That was an action on book account. The plaintiff laid his ad damnum at eight dollars. The defendant filed, or exhibited, an account of $23, in his defence. This was clearly not appealable unless made so by the exhibition of the defendant’s account; and that being found to be wholy fictitious. [198] ihe appeal, which had been taken by the defendant, was dismissed. Foster & Smalley & Adams, for plaintiff. Brown & Bascom, for defendant. The proposition, contended for, is unquestionably correct in many cases, as trespass, trover, covenant, trespass on the case, &c.; but it is by no means of universal application. In the present case, the sum demanded was $10. The account exhibited was $10,67. This presents the same question, as if the account exhibited had been $100. In either case, the defendant may contest the whole account ; and the court may be called to decide upon each and every item. The right of appeal, surely, cannot be taken away by the plaintiff’s demanding $10, only, as a balance, oras the' sum he will be satisfied with, when he presents, as the subject of controversy, an account of $100. Nor can the plaintiff prevent an appeal, by selecting, from an entire account of $100, items to the amount of $10, anymore than he could give the court jurisdiction, by demanding $10, as the balance of an account of $150; or by presenting a part only of such an account. Suppose the plaintiff should demand $10, and exhibit a specification of money had and received, work and labour, and goods sold and delivered, to the amount of $100, could the right of appeal be doubted ? Or, if the specification should be more than $100, could the want of jurisdiction by questioned ? The correct rule on the subject is this: when the plaintiff brings an action, sounding merely in damages, he may bring the subject matter within the jurisdiction of the court, or prevent an appeal by limiting his demand : but, when the action is upon an account, or a chose in action, the nominal amount must determine both the jurisdiction and the right of appeal. Upon these principles, The judgement of the county court must be affirmed,